Rethinking Adverse Possession: An Essay on Ownership and

First, the title owner asserted that New Jersey law only allowed for adverse possession when the adverse user intentionally entered land he knew belonged to another. The title owner alleged that the adverse user in this case built the additions on the mistaken belief that he owned the property. Overruling precedent, the New Jersey Supreme Court held that knowledge was irrelevant to an adverse possession determination, thus following the traditional purposes of the doctrine. The court stated that it is not the adverse user’s intent that causes the title owner to forfeit ownership, but rather the owner’s “neglect to seek recovery of possession.”

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If the adverse possession claim vested after July 7, 2008, the analysis would have been made under the new statute. Had this been the case, the adverse user would likely have lost the case because his dock is most likely a non-structural encroachment as defined by the statute. If this outcome resulted, the adverse user’s hard work and efforts in construction and maintenance of the dock for over twenty-one years would have advantaged another. Furthermore, the title owner, who failed to be personally responsible and maintain oversight over her own land, would reap the benefits despite the title owner’s discovery of the adverse user’s encroachment and continued neglect of her responsibilities as a landowner.


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With land ownership comes great responsibility to protect that land from trespassers and to maintain the land for the benefit of the owner and surrounding community. The changes to the New York adverse possession statute promote apathy in the landowner and stifle the industrious adverse possessor from picking up the slack. The new standard will allow landowners to benefit personally and financially through the hard work of others. Such a result is inequitable to the industrious users of otherwise neglected property.


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This article discusses the injustice that will result from the New York changes and the decline in personal responsibility of landowners. Part II explains the historical purposes of adverse possession. Part III discusses how New York’s prior law furthered these legitimate goals. Part IV analyzes how New Jersey’s changes in adverse possession law departed from the doctrine’s traditional principles and produced inequitable outcomes. Part V focuses on how the New York statutory changes similarly lessen landowner responsibility and industrious land uses. Part VI briefly concludes with a recommendation that New York return to its prior approach. This article demonstrates that the original purposes of adverse possession remain relevant in today’s society and that the new changes are detrimental to land productivity and use.

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Most legal scholars agree that adverse possession dates back to the thirteenth century; however, some evidence suggests that the principle originated in Roman times. Regardless of its origins, adverse possession has been part of American law since its founding. For a successful claim of adverse possession, the adverse user must typically show that the occupation is hostile, actual, open and notorious, exclusive, and continuous for the statutory period. The law of adverse possession is the culmination of a number of concerns and theories about land use and ownership.